I've told my agent, who is a dual agent for me and the buyer, to send a 2-day notice to buyer to perform. My agent said it was delivered on Saturday. I believe this would mean that Monday night would be the deadline since the 2 days are calendar days as specified by CAR and my contract. However, my agent says the 2 days begin on Monday and that it only counts weekdays. In the case my agent never did send the notice, would I still be able to cancel the purchase contract? If so, would the buyer take me to court even though I submitted a notice but agent failed to deliver? If not, can I take the agent and/or brokerage to court for any sort of damages for failure to deliver? Thank you.
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Why does your agent say two different things?– Dale M ♦Feb 9, 2021 at 0:54
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@DaleM Sorry for the misunderstanding. I assume the deadline is Monday night, not the agent. The agent says the deadline would be Wednesday night.– user106526Feb 9, 2021 at 0:59
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Can you define what 'CAR' is? Also, Law.SE isn't the best place for specific legal advice, but I think you can narrow this into a general question that is still useful for you.– PyrotechnicalFeb 9, 2021 at 20:09
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1 Answer
In the case my agent never did send the notice, would I still be able to cancel the purchase contract?
Assuming the notice is permissible under the contract, you are entitled to cancel the contract once the deadline expires and regardless of whether the agent delivered the notice. The fact that he is agent also for the buyer is crucial for this conclusion.
Agent's failure to deliver the notice to the buyer puts him in breach of the duties he had toward both you and the buyer, but only the latter is actionable (and only the buyer has standing against the agent). This means that (1) buyer's claim against you would be devoid of merit insofar as you produced the notice, and (2) you have no viable claim against the agent because you are not incurring any losses as a result of agent's failure.
Please note that I am not determining on whose deadline is accurate. Nor do I have enough information to assess whether the notice itself is valid. I am only addressing the matter of agent's failure to deliver the notice, which is your literal & actual question.
would the buyer take me to court even though I submitted a notice but agent failed to deliver? If not, can I take the agent and/or brokerage to court for any sort of damages for failure to deliver?
If the buyer takes you to court, the most appropriate ruling would be to dismiss you from the case (which will be something for you to request by motion). Other than that, you would have to proceed as third-party plaintiff because strictly speaking only the agent is liable to the buyer.
